Professional Documents
Culture Documents
Christine Hayes*
INTRODUCTION
The following well-known text from the Babylonian Talmud
(redacted ca. 600 C.E.) has had an enormous influence on scholarly
accounts of the relation between divine authority and human authority
in talmudic rabbinic Judaism.
[Regarding a certain kind of oven, R. Eliezer rules that it is ritually
pure and the sages rule that it is ritually impure.]
It was taught: On that day, R. Eliezer responded with all possible
responses, but they did not accept them from him. He said to them,
If the law is as I say, let this carob [tree] prove it. The carob
uprooted itself from its place and went 100 cubitsand some say
400 cubits. They said to him, One does not bring proof from a
carob. The carob returned to its place.
He said to them, If the law is as I say, let the aqueduct prove it.
The water flowed backward. They said to him, One does not bring
proof from water. The water returned to its place.
He said to them, If it [the law] is as I say, let the walls of the
academy prove it. The walls of the academy inclined to fall. R.
Joshua rebuked them, When sages argue with one another about
matters of law, what is it to you? It was taught: They did not fall
out of respect for R. Joshua, and they did not straighten up out of
respect for R. Eliezer, and they are still inclined.
He said to them, If it is as I say, let it be proved from Heaven. A
heavenly voice went forth and said, What is your problem with R.
Eliezer, since the law is like him in every place?
R. Joshua stood up on his feet and said, It is not in Heaven
(Deuteronomy 30:12).
What is It is not in Heaven? R. Jeremiah said, We do not listen to
a heavenly voice, since you already gave it to us on Mt. Sinai and it
is written there, Incline after the majority (Exodus 23:2).
R. Nathan came upon Elijah. He said to him, What did the Holy
* Christine Hayes is the Robert F. and Patricia R. Weis Professor of Religious Studies in
Classical Judaica at Yale University. She is the author of two books and numerous articles in
biblical and talmudic studies.
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Olives [may be separated as heave offering] for olive oil and grapes
for wine [a citation of Mishnah Terumot 1:4]. Is it not Torah law
that one may separate as heave offering [the one for the other], but
the sages ruled to the contrary, that one may not separate olives as
heave offering for olive oil or grapes as heave offering for wine, in
order to prevent the theft [of valuable goodswine and oil] from the
priests. And not only this but they also ruled that if one transgressed
and separated [olives or grapes], that which he has designated as
heave offering is not heave offering.7
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debts.10 Then why were people observing it? Because even though the
Torah no longer strictly required it, rabbis prior to Hillel had decided to
extend its observance (and it is certainly within the bounds of rabbinic
authority to add to the obligations of the Torah, to create a seyag leTorah, not uprooting it but extending it). Thus, Hillels institution of
the prozbul merely set aside a rabbinic requirement and, in so doing,
actually restored the exemption envisaged by the biblical text. Hillel
was no radical innovator. On the contrary, according to the Palestinian
Talmuds revisionist account, he was a conservative, returning the law
to its proper biblical condition after earlier unnamed and undocumented
rabbis had extended its demands (properly enough) as a seyag leTorah.11 It was this rabbinically extended obligation that Hillel
overturned.
This kind of revisionismclearly an artificial construction in
which innovation is recast as restorationoccurs occasionally in the
Palestinian Talmud; however, in at least ten cases in which a rabbinic
taqqanah is said to contradict Torah law, the contradiction is tolerated.
By contrast, later strata of the Babylonian Talmud adopt this and other
strategies in order to redescribe all contradictory taqqanot as not in fact
contradictory of biblical law.
II. CREATIVE EXEGESIS OF SCRIPTURE
The rabbis were not simply legislators; they were also the
authoritative interpreters of scriptural law. The authority to interpret
Scripture can be utilized in more or less radical ways and the rabbis of
the talmudic period have earned some notoriety for the unrestrained and
convoluted exegesis by which almost anything was read out of, or
perhaps into, the biblical text. For some time, scholars have tended
toward the view that the rabbis simply perceived no difference between
10 In short, the very creative midrashic argument is that the seventh year release of debts and
the fiftieth year release of land operate in tandem or not at all. If Jews are not in a position to
observe the fiftieth year release of land then neither are they obligated to observe the seventh year
release of debts.
11 The Babylonian Talmud contains essentially nothing new in its discussion of the prozbul of
Hillel. The same revisionist strategy is adopted in the Babylonian Talmuds sugya and it is
motivated by the same concern, as we read in b. Git 36a: is it possible that there be something [a
debt] that according to Torah law is released in the seventh year but Hillel enacted is not
released . . . ? BABYLONIAN TALMUD, TRACTATE GITTIN, 36a (umi ikka midi demideorayta
meshameta sheviit vehitqin Hillel demeshameta?). Nevertheless, other scholars have read the
Babylonian Talmud as taking a radically different approach that emphasizes innovative boldness
and rabbinic prerogatives vis--vis the Torah. For a fuller discussion and refutation of this
position, see Christine Hayes, The Abrogation of Torah Law: Rabbinic Taqqanah and Praetorian
Edict, in THE TALMUD YERUSHALMI AND GRAECO-ROMAN CULTURE 643, 643-74 (Peter Schfer
ed., 1998) ( see especially 646-50 and notes).
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understand what they were saying. His strength left him. But when
they came to a certain topic and the disciples said to him [to R.
Akiva], Rabbi, whence do you know it? he replied to them, It is a
law given to Moses at Sinai [a halakhah le-Moshe mi-Sinai]. And
Moses was comforted.15
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first husband].26
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you are not he regardless of the actual facts of the matter. The fiction
you are not he expresses the courts right to refuse the returning
husbands claim by treating him as if he were not himself. As Shamma
Friedman points out, the halakhah of Rav is a daring halakhah, in
which a legal fiction trumps reality entirely.29
Ravs legal fiction found a mixed reception. His halakhah is
accepted though grudgingly in later Palestine. A Palestinian sage, R.
Immi, reluctantly rules in line with Ravs halakhah but underscores its
moral defect: he tells the second husband that his children by the
woman will be illegitimate.
A case came before R. Immi (late third century C.E.). He said to
[the second husband after the first had come back], Yes, it is true
that she is permitted to you. But you should know that your children
[by her] will be bastards [illegitimate] in the sight of heaven [even if
not by the laws of man]. And R. Zeira praised him for laying out
the results of the matter with clarity.30
Note this dichotomy between the laws of heaven (which are true
or correct) and the rule of Rav, which though valid is not true.
Interestingly, the Palestinian Talmud describes the situation among their
Babylonian brethren as even more fraught. There in Babylonia, it is
reported, Ravs disciples had to use force to compel others to accept
their masters ruling.
A case came before the rabbis over there (in Babylonia). They said
to him. You are not he [i.e., we do not legally recognize you].
Abba bar Ba (early Babylonian) got up and whispered in his [the
second husbands] ear: By your life! Give her a divorce by reason
of the doubt [as to whether or not he is the original husband, and so
protect her from a simultaneous marriage]. The disciples of Rav
got up and hit him. . . .
Shmuel said: I was there . . . my father [Abba bar Ba] was flogged
and accepted it [i.e., Ravs ruling].31
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30
31
32
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Id. at 88a.
Id. at 89a-90b.
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CONCLUSION
We have seen that later (fourth century C.E. on), especially
Babylonian, sources exhibit a pronounced anxiety over bold exercises
of rabbinic authority of an earlier period (pre-fourth century) and tend to
eschew interpretative, legislative, and judicial strategies that overstep
the perceived bounds of rabbinic authority or threaten to undermine
confidence in rabbinic authority because they strain credulity. These
include the issuance of rabbinic legislation contrary to Torah law,
extreme forms of Scriptural exegesis, rulings based on conscious error,
and legal fictions. We are speaking about a tendency, not a full-blown
about-face. This growing anxiety had paradoxical results: while we
witness a reduction in the bold exercises of rabbinic authority in
practice, we see the retention and even expansion of grandiose
assertions of rabbinic authority in aggadic passages. How are we to
explain this?
There is a better way to formulate the question. In truth, it is not
the later period that requires explanation as much as the earlier period.
For as I will argue now, it is the early and primarily Palestinian
tolerance for radical exercises of rabbinic authority that is remarkable.
The explanation for the early Palestinian attitude may be found in the
Roman legal environment to which the Palestinians were exposed.
Certain fundamental differences between the Roman and Jewish
legal systems may illuminate the developments I have described. The
Roman legal system differed from the Jewish legal system in two ways
that are of great importance to us. First, the Roman legal system was
not hierarchical. It did not posit one single source of legal authority.
The Roman legal system comprised several independent and equally
primary sources of law and legal authority: legislation, particularly the
founding document known as the Twelve Tables and subsequent
enactments of the comitia; a senatus consultum, a resolution of the
senate which at a certain point in Roman history acquired the force of
law; edicendi, or edicts of the magistrates; and there are others. Being
independent, these sources might challenge or be challenged by one
another. Of particular interest are the edicts of magistrates, particularly
those of a magistrate known as the praetor (established 367 B.C.E.).35
35 For details of the establishment of the praetorship, see H. F. JOLOWICZ & BARRY
NICHOLAS, HISTORICAL INTRODUCTION TO THE STUDY OF ROMAN LAW 16, 48-49 (3d ed. 1972).
The praetors legal function was the administration of the civil process (iurisdictio) in Rome.
About 242 B.C.E. a second praetor (the praetor peregrinus as opposed to the praetor urbanus)
was added to control litigation between foreigners. For the exact relationship between, and the
respective responsibilities of, the urban and peregrine praetor, see ALAN WATSON, LAW MAKING
IN THE LATER ROMAN REPUBLIC 63-87 (1974); David Daube, The Peregrine Praetor, 41 J.
ROMAN STUD. 66, 66-70 (1951). The praetor was always given a definite sphere (provincia) in
which to exercise his power. In the second century B.C.E. these provincia comprised two
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While the praetors edict could not abolish clauses of the old civil
lawsthe latters terms were still there for all to seeit could render
provisions of the civil law inoperative. It could supplant them in
practice by stating that certain laws would not be enforced and certain
remedies would not be granted, regardless of what was written in the
civil law.
In 130 C.E., Hadrian consolidated all the edicts of past praetors
into a code given the force of law, the Edictum Perpetuum, containing
about two hundred separate provisions published regularly and so
persisting as a functioning body of law alongside the old civil law,
whose provisions it occasionally supplanted.36 I have argued at length
elsewhere that there are many formal, terminological, and substantive
parallels between the rabbinic taqqanah and the praetorian edict.37 It
may be that taqqanot that improved, repaired, and on occasion
overturned Torah law arose and were largely tolerated in Roman
Palestine in the first three centuries of the Common Era, because of the
highly visible and parallel phenomenon in the surrounding Roman legal
culture, namely, edicts designed to improve, repair, and on occasion
overturn provisions of the civil law.38 But the example of Roman law
did not succeed in completely dispelling an aversion to taqqanot that
contradict Torah law. As it became an accepted principle that rabbinic
enactments had no authority independent of that ceded to them by the
written Torah, it was more difficult to accept rabbinic enactments that
jurisdictional spheres of the city and four governorships abroad. Following the constitutional
reforms of Sulla, a total of eight praetors served a year in Rome (in various capacities) before
proceeding to governorships of provinces abroad. See JOLOWICZ & NICHOLAS, supra, at 49.
36 J.A.C. THOMAS, TEXTBOOK OF ROMAN LAW 35 (1976); ALAN WATSON, SOURCES OF
LAW, LEGAL CHANGE, AND AMBIGUITY 22 (1984); see O. LENEL, DAS EDICTUM PERPETUUM.
EIN VERSUCH ZU SEINER WIEDERHERSTELLUNG (photo. reprint of Leipzig: B. Tauchnitz 1927)
(1956).
37 See the discussion of these suggestive parallels in Hayes, supra note 11, at 668-69. While
we can never be completely sure that the rabbinic taqqanah was influenced by the Roman edict,
there are a number of indications that such influence was likely. There is good evidence that the
rabbis had more than a passing familiarity with the Roman edict which was so important in
Roman provincial administration. The Latin term edictum is translated in Greek as diatagma or
prostagma and both terms appear in various forms in rabbinic texts. See SAMUEL KRAUSS,
GRIECHISCHE UND LATEINISCHE LEHNWRTER IM TALMUD, MIDRASCH UND TARGUM 196, 483
(1964); DANIEL SPERBER, A DICTIONARY OF GREEK AND LATIN LEGAL TERMS IN RABBINIC
LITERATURE 79-81 (1984); Saul Lieberman, Roman Legal Institutions in Early Rabbinics and in
the Acta Martyrum, 35 JEWISH Q. REV. 1, 6-7 (1944).
38 Several Palestinian traditions suggest that Palestinian rabbis were familiar with the
standard form, the manner of publication, and other specific features of the Roman edict. For a
complete list of the relevant rabbinic sources see the Aruch, KRAUSS, supra note 37. On the
phrase paras diatagma (translated as: promulgated an edict) see Lieberman, supra note 37, at
6-7; Louis Finkelstein, The Meaning of the Word Paras . . . , 32 JEWISH Q. REV. 387 n.1 (1942).
Rabbinic texts describe edicts becoming law after being displayed in the public place of the city
and contain vivid accounts of the attitude of the people upon reading the edicts of the melekh.
See citations in Lieberman, supra note 37; SPERBER, supra note 37.
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fictions, which depict rabbis upholding determinations that are contraryto-fact and which, in a few fascinating passages, explicitly acknowledge
that law and truth are not always and necessarily aligned.
For the first two centuries of the Common Era, rabbis of Palestine
not only talked the talk, they also walked the walk, both proclaiming
and exercising their authority in a bold manner. Given the hierarchical
and divine nature of Jewish law, the behavior of these sages was
remarkable. I have suggested that this behavior should be understood in
the context of the secular Roman legal system that pervaded their
environment, with its multiple sources of law and legal authority
operating independently and often at cross-purposes. But bold uses of
rabbinic authority sat uneasily in a system that was, after all, on its way
to becoming more clearly hierarchicalwith various sources of law
subordinated to an ultimate and divine source of authority. As later
fourth to sixth century rabbis, especially in Babylonia, became anxious
about the activity of their predecessors they honored them in word only,
but not in deed.